H. Baruah, J.:— The appellant Sri Lebudhar Chetia @ Lambodhar Chutia stood charged under section 302, IPC for committing murder of one Sailen Neog, S/o Sri Homeswar Neog (P.W-10) on 8th day of December, 1993 before the learned Session Judge, Tinsukia in Sessions Case No. 69(T) of 1994. The learned trial court at the conclusion of the trial, having found guilty the appellant, convicted and sentenced him under section 302, IPC and awarded life imprisonment with fine of Rs. 5,000 in default R.I for three months. Appellant, feeling aggrieved by the judgment and order of conviction dated 17.8.2005 preferred this appeal challenging its legality and correctness.
2. Before entering into the merit of this appeal it would perhaps be appropriate for us to make a short survey of the prosecution case. Deceased Sailen and the appellant Lebudhar Chetia @ Lambodhar Chutia were co-villagers. Both of them were living in the same locality of Kachujan village under the jurisdiction of Tinsukia Police Station. On the relevant day, i.e, 8.12.1993 at the instance of Sri Homeswar Neog (P.W-10), the deceased engaged trucks for carrying earth/soil to raise the level of a portion of their land measuring 1½ Bigha belonging to his father Homeswar Neog situated at Kachujan. While the deceased was looking after filling up of the land by engaging truck, appellant objected to that the deceased should not fill up the land since it would create obstruction from proceeding to their land. Deceased paid no heed to the protest raised by the appellant. Being aggrieved thereby appellant assaulted the deceased at random with sharp weapon with a dao causing multiple injuries on the person of the deceased. Being assaulted thus, deceased was shifted to the hospital but he succumbed to his injuries at Assam Medical Collage Hospital, Dibrugarh (herein after referred as ‘AMCH, Dibrugarh’).
3. One Smt. Rabati Chetia (P.W-4) set the criminal law in motion by sending a telephonic massage regarding the assault, which had taken place in their locality. Said information was recorded vide Tinsukia P.S.G.D Entry No. 271[Ext.-6] at 3.30 P.M on 8.12.1993 After making of the G.D Entry, one S.I Dhir Singh Das was deputed by the Officer-in-Charge to have a visit at the place of occurrence and made investigation of the case. He, accordingly, being entrusted as such had been to the place of occurrence and found the injured Sailen Neog lying inside the paddy field. The injured was sent to the hospital and he thereafter prepared a sketch map [Ext.-7] of the place of occurrence. A search was made for the offender but he was not found at his address. However, a dao was seized vide exhibit 5 on being produced by the daughter of the appellant Ms. Junali Chetia (P.W-8). In the meantime the said S.I Dhir Singh Das received a written First Information Report [Ext.-4] from one Khorgeswar Chetia (P.W-3) at the place of occurrence, which was forwarded to the Tinsukia Police Station for registering a case. Tinsukia P.S Case No. 557 of 1993 was registered under section 326, IPC. Injured Sailen Neog was referred to AMCH, Dibrugarh for his improved treatment but he died thereat. On the death of Sailen Neog, section 302 was subsequently added. The inquest on the dead body of deceased was held by Jatin Dihingia, (P.W-15) a police official of Borbari Police outpost under Dibrugarh Police Station. Post-mortem examination was done at the AMCH, Dribrugarh. At the conclusion of the investigation, investigating agency submitted charge sheet against the appellant under section 302, IPC. The case being committed to the court to session, a charge under section 302, IPC was framed against the appellant. The appellant pleaded not guilty to the charge. Trial commenced and at the conclusion of the trial, the appellant was convicted as above.
4. Altogether 17 (seventeen) witnesses were put into the witness box by the prosecution to substantiate the charge including two C. Ws while defence examined one Bina Kanta Hazarika (D.W-1). The appellant was examined under section 313, Cr. P.C in order to explain the circumstances appearing against him in the evidence so recorded by the trial court. Appellant pleaded his innocence and did not offer any specific statement in respect of the circumstances appearing against him rather pleaded alibi stating that on the relevant date he was at Philobari in connection with his business.
5. After a close scrutiny of the evidence on record we have come across that out of 15 prosecution witnesses minus two C. Ws, P.W-3 to P.W-8 and P.W-12 turned hostile to the prosecution. P. Ws-2, 9, 10 and 11 testified that they heard the fact of killing of the deceased by the appellant from the villagers and others. Acceptability of hearsay evidence and hostile witness will be discussed by us at the appropriate place of this instant judgment.
6. Before adhering to the law in respect of those two aspects above, we now propose to discuss and see whether the death of the deceased was homicidal or suicidal. In this context, the evidence of Dr. Homeswar Sarma (P.W-1) would be very relevant. Of course no dispute has been raised by the defence that deceased did not meet with a homier death. Evidence of the peosecution witnesses including C. Ws coupled with the statement of P.W-4, Rabati Chetia, we affirmed that they have testified of a homicidal death. P.W-1, Dr. Homeswar Sarma while on oath in the witness box categorically deposed that on 9.12.1993 at about 12.30 P.M he performed postmortem examination on the dead body of the Sailen Neog being produced and identified by Constable No. 1445 Chandra Konwar and Dhaneswar Neog, the elder brother of the deceased being referred by Barbari police outpost vide G.D Entry No. 180 dated 9.12.1993 and found the following:
“1. One incised wound on the left shoulder at lower part on lateral surface in transverse plane 12 × 5 × 7 cm cutting humerus.
2. One incised wound on the back of left elbow are part 5 × 2 × 1 cm.
3. One incised wound on the left elbow in the back forearm part 15 × 10 × 3 cm cutting the epiconeyles.
4. One incised wound on the left temporal scalp just above the ear in the transverse plane 16 × 2 × 2 cm cutting the temporal bone.
5. One incised wound on the left temporal scalp in zygomatic fossa in front of the ear below injury No. 4 measuring 6 × 2 × 1 cm.
6. One incised wound placed obliquely over anterior end of injury No. 5, measuring 5 × 1 × 3 cm cutting the bone.
7. One incised wound on the left side of nose over alae nasi 2 × 0.1 × 0.5 cm.
8. One incised wound on the left foot from lateral border mind part obliquely forward up to root of great toe cutting the structures and metaforsal and phanges.
9. One incised wound on the right forearm in mid part completely separating the distal segment except a flap of skin attaching on ventral surface cutting the radius and ulna with all tissues.
10. One incised wound on the right wrist and palm in ventral aspect 8 × 3 × 3 cm bone deep.
11. One incised wound on the dorsal aspect of right wrist 3 × 2 × 1 cm.
12. One stab wound above the left iliac crest in the abdominal wall placed obliquely measuring 3 × 1 × 3 cm.”
7. Having discovered the injuries on the dead body, P.W-1 opined as under:
“The death, in my opinion was due to shock and hemorrhage as a result of injuries sustained which were ante mortem and homicidal in nature. Time since death was approximately 10 to 20 hours. The injuries Nos. 4 and 5 were independently sufficient to cause the death of a person and other injuries were also grievous in nature which were also sufficient to endanger the life of a person.”
8. From the opinion so offered by P.W-2 three aspects have come onto the surface: (1) that the death was due to shock and hemorrhage as a result of injuries sustained, (2) that the injuries so discovered were all ante mortem and homicidal in nature, and (3) that the injury Nos. 4 and 5 were independently sufficient to cause death of a person and other injuries were also grievous in nature sufficient to endanger the life of a person. So from this particular testimony of this witness we do not have any hesitation to hold that the deceased died as a result of injuries sustained by him while he was alive and the same were homicidal in nature.
9. P.W-15 is a police personnel from Barbari police outpost under the Dibrugarh police station, had been entrusted to the AMCH, Dibrugarh to take appropriate steps in respect of the dead body of the deceased, who died at the hospital while under going treatment. His evidence goes to show that on 9.12.1993 he was attached to Barbari police outpost under the Dibrugarh police station. On that day Sri S.N Chetia of Medical Record Department of AMCH, Dibrugarh informed that Sailen Neog was admitted on 8.12.1993 in the hospital having cut injuries on his person expired. Bakul Kakati, ASI of police was then in-charge of the outpost, deputed him to AMCH for taking necessary steps. Accordingly, he conducted inquest [Ext.-1] on the dead body and sent the dead body for post mortem examination. Exhibit-4, the inquest report gives a detail description of the injuries so found on the dead body of Sailen Neog. The purpose of conducting an inquest on the dead body of a deceased is to make an assessment of the cause of death. From the reading of the inquest report [Ext.-4] it is noticed that the injuries discovered on the dead body while conducting the inquest do not conflict with the injuries so discovered by P.W-1, the doctor who conduct the autopsy on the dead body of the decease. The purpose of inquest being limited it cannot be argued that the inquest report should contain every detail including the name of the accused witnesses and the weapon used.
10. Thus, the evidence of P.W-1 coupled with the evidence of P.W-15 make a revelation that deceased Sailen Neog died as a result of shock and hemorrhage on account of the injuries sustained by him.
11. Now, the next pertinent question to be decided by us, who could be held responsible for the death of the deceased. We have already noticed herein before that P. Ws-2, 9, 10 and 11 were all reported witnesses. They all testified that they heard about the killing of the deceased Sailen Neog by the appellant at the field while he was looking after the filling of earth at their land with the help of truck. Evidence of a reported witness can be looked into from two angles. If the witnesses apart from the hearsay of the killing testified some other facts, those facts can be taken into consideration and acted upon and minus the facts so heard. Though these witnesses claimed to have the information of killing from different persons, those persons were not put in the witness box to face the cross-examination by the adversary party. Acceptability of hearsay evidence depends only of examination of the person from whom the witness is stated to be heard about the fact of killing. P.W-10 Homeswar Neog, father of the deceased though claimed to have had the knowledge of the killing from Gahin, his son and Bhola, the truck driver, said Gahin and Bhola did never say that the fact of killing of the deceased by the appellant was reported to P.W-10. In the same way P.W-9 also claimed to have had the knowledge about the killing of the deceased by the appellant from his wife and neighbours. The wife and the neighbours from whom he heard the fact of killing were also not put into witness box for cross-examination. P.W-11 also stands in the same footing. Therefore, the part of evidence as testified by them that they heard the fact of killing of the deceased by the appellant cannot be admitted in evidence. Argument put forward by the learned Additional P.P that the testimony of P.Ws 2, 9, 10 and 11 can be accepted and acted upon is not sustainable.
12. In the face of the factual situation, now, we are to look for if there is other acceptable evidence on record to hold the appellant guilty under section 302, IPC. In this context the evidence of C.W-1 plays an important role. This witness claimed to have witness the assault on the deceased by the appellant with a dao. He in his evidence stated as under:
“We had 11/2 bighd of land at kachujan. It was a paddy land. My elder brother arranged and engaged a truck to fill up the land for constructing a house thereon. The truck belonged to a Bengali person. Bhola Dahatia was the driver of the truck. Earlier two trucks loads of soil were unloaded there.
On the day of occurrence my brother also went there to the land. Truck load of earth was also taken there. Accused Nimbudhar Chetia asked my brother not to take earth from there. The soil was purchased from a nearby land of labourer. In another truck of the same owner soil was loaded therefrom. I was there at that time. The said place is at a distance of about half k.m from the place of occurrence. Nimbudhar came with a Dao in hand and asked my brother not to fill up the land. At that time I was at the place where another truck was loaded. My brother told him that the land belonged to us and so he filled it. Thereafter Nimbudhar assaulted my brother. My brother fell down being injured. First strike was given on the hand of my brother. At that time I was in the house of Helen Neog. I came running. My brother was assaulted on different parts of his body, such as face, leg, etc. in the meantime. The truck driven by Bhola Dahatia fled away. I saw the accused assaulting my brother from a distance of about 4 Nals. I believe 12 cubits make a Nal. I arrived at the place of occurrence, immediately. At that time my father had been at Tinsukia town. On the way he had been informed by Monu about the incident. He came there. Thereafter my brother was taken to Civil Hospital, Tinsukia and then to Assam Medical College Hospital, Dibrugarh, where he died. At that time S.P Tinsukia, used to stay in a bunglow of Sukhenpukhri Tea Estate. The land of my uncle Helen Neog is contiguous to Sukhenpukhri Tea Estate. Aconstable of S.P's residence informed police over phone. Police came immediately.
I do not know the owner of the land from which earth was carried. His son was Chinmoy. The hiring charge of truck was paid by my deceased brother. In the previous year some other people took earth from the same land. Due to lifting of earth, the land became 3 feet low. The place of occurrence falls on the way from our house to market. The place of occurrence is situated by the side of the road. Helen Neog's house is nearer to the place of occurrence than from the place of collecting earth to our land. The distance in between the place of occurrence and the place where from earth was collected is equal to the distance from the court to S.P's office (about 11/2two furlongs). It was a Mechi Dao with which Nimbudhar assaulted my brother. I did not hear what they were talking. The Dao was about 3 feet with handle. At the time of loading the engine of truck was kept on due to weak battery. When the truck was loaded, I was on the bank of the pond created by earth filling. When my brother was given Dao blows, I was at the same place of lifting of earth. One person informed and so I rushed there. I was told by the son of the landowner namely Chinmoy who came to see whether the truck was loaded or not. My brother was assaulted near our land. I was present when the police came. Police did not examine me, as, I went to Dibrugarh.
I told the police that I saw the assault on my brother. Next day police took my statement. It is not a fact that I depose falsely as the deceased was my brother. There are about five labourers in the truck. For the occurrence all the labourers fled away. The labourers were from outside Assam. It is not a fact that I did not see occurrence. It is not a fact that the place of collecting earth is a distance of more than one mile from the place of occurrence.”
13. Though Bhola Dehotia was stated to be the one of the eyewitness of the occurrence, he while in witness box as C.W-2 refused to support the case of the prosecution. Therefore, his evidence to our estimation cannot help the prosecution in the context of assault on the deceased by the appellant. He, however, proves that on the relevant day he was engaged, being a truck driver to fill up their land by carrying earth from other source. Thus, evidence of C.W-1 together with the evidence of P.W-1, Dr. Homeswar Sarma speak for that the deceased died as a result of injuries caused by the appellant with the help of a dao. Argument put forward by Mr. K.C Mahanta, learned P.P Assam cannot receive any appreciation from us in view of the evidence available on record.
14. P.Ws 3 to 8 and P.W-12 turned hostile during prosecution which means they refused to support the case of the prosecution that projected by it. Now the question is to what extent the evidence of the hostile witnesses can be accepted and acted upon. In this context it would be appropriate for us to refer a decision reported in Leila Srinivasa Rao v. State of Andhra Pradesh, (2004) 9 SCC 713 : AIR 2004 SC 1720. In the case their lordships of the Supreme Court in para 14 of the judgment held as under:—
“14. We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased was treated with cruelty by both the accused. However the witnesses including the father of the deceased have not supported this case. In fact, the father of the deceased namely, PW-1, in his deposition stated that misunderstandings arose between his daughter and her husband on account of the fact that the three children of the deceased sister of the appellant were being brought up in the house of the appellant, which was objected to by the deceased. If in those unfortunate circumstances the three children of the deceased sister of the appellant were being brought up in his family, one cannot blame the appellant or his parents for having shown compassion towards the children of his deceased sister. If that is what caused annoyance to the deceased, one cannot equate such conduct with cruelty or harassment. We also find no reason why on this aspect of the matter the father of the deceased should not speak the truth. In any event, he and his family members were the only persons who could have deposed about the treatment meted out to the deceased. All of them have denied the suggestion that the appellant or his mother-in-law treated the deceased with cruelty. The fact that these witnesses have been declared hostile by the prosecution does not result in the automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. In any event, if their evidence is kept out of consideration, there is no other evidence to prove the prosecution allegation of cruelty and harassment meted out to the deceased. Having regard to the inconsistency in the two dying declarations we do not find it safe to act solely on them to convict the appellant, for that reason even accused No. 2, the mother of the appellant who has since served out her sentence.”
15. Mr. K.C Mahanta, learned P.P, Assam also referred to some other decisions rendered by our hon'ble High Court reported in Nazrul Haque Choudhury v. State of Assam, 2004 (3) GLT 453 and (Cherlopalli Cheliminabi Saheb v. State of A.P, (2003) 2 SCC 571. Though reference has been made in respect of hostile witnesses, no law as such has been enunciated by the hon'ble Supreme Court and the High Court in both the cases. It has been simply referred that the witnesses turned hostile.
16. In another case between Radha Mohan Singh @ Lai Saheb v. State of U.P with Kaushal Kishore Singh v. State of U.P, (2006) 2 SCC 450 : AIR 2006 SC 951, their lordships of the Supreme Court at para-7 of the judgment held as under:
“7. It is well-settled that while hearing an appeal under article 136 of the Constitution this court will normally enter into reappraisal or the review of evidence unless the trial court or the High Court is shown to have committed an error of law or procedure and the conclusions arrived at are perverse. The court may interfere where on proved facts wrong inference of law is shown to have been drawn [see Duli Chand v. Delhi Administration, (1975) 4 SCC 649; Mst. Dalbir Kaur v. State of Punjab, (1976) 4 SCC 158, Ramanbhai Naranbhai Patel v. State of Gujarat, (2000) 1 SCC 358 and Chandra Bihari Gautam v. State of Bihar, JT 2002 (4) SC 62].
Though the legal position is quite clear still we have gone through the evidence on record in order to examine whether the findings recorded against the appellants suffer from any infirmity. The testimony of PW-1 Ganesh Singh, who is an injured witness, and PW-4 Ramji Singh clearly establishes the guilt of the accused. According to the case of the prosecution the incident took place shortly after sunset. The eyewitnesses have deposed that after the incident the deceased Hira Singh was carried on a cot to the ‘bandh’, which is on the outskirts of the village. As no conveyance was available, the first informant had to wait for quite some time and thereafter the temp was arranged on which the deceased was taken to the district hospital where he was medically examined by PW-2 Dr. Siddiqui at 9.00 P.M It has come in evidence that the village is at a distance of six miles from police station Kotwali, Ballia. The nonavailability of any conveyance is quite natural as it was Holi festival. Even PW-3 Mohan Yadav fully supported the prosecution case in his examination-in-chief. In his cross-examination. Which was corded on the same date, he gave details of the weapons being carried by each of the accused and also the specific role played by them in assaulting the deceased and other injured persons. As his cross-examination could not be completed it was resumed on the next day and then he gave a statement that he could not see the incident on account of darkness. His testimony has been carefully examined by the learned Sessions Judge and also by two learned Judges of the High Court (hon'ble K.K Misra, J and hon'ble U.S Tripathi, J) and they have held that the witness, on account of pressure exerted upon him by the accused, tried to support them in his cross-examination on the next day. It has been further held that the statement of the witness, as recorded on the first day including his cross-examination, was truthful and reliable. It is well-settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. [See Bhagwan Singh v. State Of Haryana, (1976) 1 SCC 389 : AIR 1976 SC 202; Rabinder Kumer Dey v. State of Orissa, (1976) 4 SCC 233 : AIR 1977 SC 170; Syed Akbar v. State of Karnata, (1980) 1 SCC 30 : AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v. State Of Madhya Pradesh, (1991) 3 SCC 627 : AIR 1991 SC 1853], The evidence on record cLarly shows that the FIR of the incident was promptly lodged and the testimony of PW-1 Ganesh Singh, PW-4 Ramji Singh and also PW-3 Mohan Yadav finds complete corroboration from the medical evidence on record. We find absolutely no reason to take a different view.”
17. The law as laid down by the hon'ble Supreme Court in the context of acceptability of the evidence of hostile witnesses, it was held that for acceptance of the evidence of hostile witnesses there should be some corroboration from other facts. The fact that the witnesses turned hostile and their evidence cannot be automatically rejected by the court, the courts have to seek some corroboration of the facts while judging the guilt of an accused. These hostile witnesses very nakedly refused to support the case of the prosecution. They were, however, cross-examined by the prosecution with reference to their earlier statement recorded under the provisions of section 161 of the Cr. P.C, which are subsequently confirmed through the mouth of P.W-13, the Investigating Officer. From his evidence it is found that these witnesses did state before the I.O in regard to the occurrence with reference to killing of the deceased by the appellant. So there appears corroboration from testimony of the P.W-13 regarding the fact in issue though they turned hostile. Even if we substract or in other words do not take into consideration the testimony of the hostile witnesses referred above, the fact in issue can be decided against the appellant Lebudhar Chetia @ Lambodhar Chutia on the basis of the evidence of PW-1, C.W-1 and PWs. 13, 14 and 15 together with evidence of W-2, 9, 10, 11 and C.W-2.
18. The appellant while under examination under section 313, Cr. P.C raised the plea that he was not present at the time of occurrence in the locality rather was at Philubari and in support of his contention he produced DW-1 as a defence witness. The name of the defence witness is Bina Kanta Hazarika. The DW-1 while under cross-examination stated that during the period of 1962–1970 he was staying in a rented house at Sripuria, whereas the accused was a resident of Kachujan Pathar. It is stated in his examination that the appellant was a schoolmate of him but he failed to give appropriate answer in which school the appellant prosecuted his studies. From overall scrutiny of the evidence of DW-1 it has become apparent that his evidence is not found worthy to acceptance with reference to the alibi taken by the appellant.
19. Now let us consider about the motive behind the killing of the deceased. Motive is not sine qua non to prove a crime. However, if the prosecution succeeds to prove the motive behind the offence from the facts and evidence available, it reinforces the prosecution case. It is in the evidence on record that the appellant and the deceased had their cultivable land side by side. CW-1 testified that while they were busy in earth filling appellant came and protested. Quarrel ensued. As per evidence of CW-1 the appellant being enraged dealt dao blows on the person of the deceased, which subsequently resulted his death. Thus, from the facts and evidence on record it is found that the appellant killed the deceased due to a dispute regarding earth filling.
20. According to prosecution the dao was recovered from the house of the accused-appellant being produced by his daughter. However, the daughter PW-8 while in the witness box denied such recovery. PW-6 was a signatory to the seizure list but this witness turned hostile to the prosecution. PW-9 admitted the factum of seizure of the Dao from the house of the accused and at that time appellant-accused was not at his home. Thus, the evidence of PW-13, the I.O in respect of seizure of a Dao from the house of the appellant on being produced by the daughter PW-8 has been found to be corroborated by PW-9. Evidence would show that the said dao allegedly recovered from the house of the appellant was not sent for serological test to any forensic science laboratory. That apart there is no evidence to show that this dao had been used by the appellant while assaulting the deceased.
21. Now another point to be considered here in this appeal is whether the conduct of the appellant can be taken into consideration to show his complicity in the commission of the alleged crime. It is the case of the prosecution that the appellant after the occurrence absconded from his village for long seven months for which the investigating agency was unable to apprehend him till the filling of the charge sheet on 30.5.1994 According to PW-13 attempts were made to apprehend the appellant on several occasions but he was not found at the addresses. Absconding of an accused is a relevant fact under section 8 of the Evidence Act. Illustration I clearly speaks for that if a person absconds after commission of the crime is a fact to be considered. In a catena of a decision the hon'ble Supreme Court held that such conduct of the accused would be relevant. Thus, we are of the view that the appellant's conduct can be considered as a incriminating circumstances against him. Thus, having considered the facts and circumstances of the case and evidence on record we are of the view that no error or illegality has been committed by the learned trial court in holding the appellant guilty under section 302, IPC and sentencing as above. The judgment and order of conviction rendered therefor cannot ask for any interference from this court and the same are accordingly affirmed.
22. In the result, the appeal stands dismissed.
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